A blog about developments in the nongovernmental, nonprofit, charitable sector in China.

Sunday, January 8, 2017

More FAQs on the Overseas NGO Law: Reading the Fine Print

The more I
speak to people about the Overseas NGO Law, the more I realize how much
misunderstanding there is about the law. I think it is safe to say that this
misunderstanding exists both among NGOs and among the Public Security officials
who are charged with implementing this law.

One source of
misunderstanding comes from confusion about what different terms mean. Another
source comes from the law itself being unclear on some points. This series of
FAQs seeks to provide some clarity on these areas.

What is the
difference between the Professional Supervisory Unit (PSU) and a Chinese
Partner?

As I've written
in a previous
post, the Law only provides overseas NGOs with two ways to operate in
China. One is for the NGO to register a representative office with the
provincial Public Security Bureau (PSB). The second, for NGOs that do not need
or want to establish an office in China, is for them to "file
documents" on their "temporary activities" with the provincial
PSB. (It's still unclear how the PSB defines "temporary activities,"
whether an "activity" can encompass an entire program or project that
consists of a set of smaller activities, or whether the NGO needs to file
paperwork on each small activity that makes up a larger program or project.)

To register a
representative office, an NGO needs to get the approval of a Professional
Supervisory Unit (PSU) (or what the official English-language translation calls
"organizations in charge of operations") in its main field or area,
before it can register with the PSB. In other words, it comes under what the
Chinese call a "dual management system" needing to get approval from
both the PSU and the PSB.

To "file
documents" for "temporary activities," an NGO only needs to find
a Chinese Partner who can get the necessary approvals for those activities, and
file the necessary paperwork with the PSB. In theory, this means that the
NGO only needs to inform the PSB about its activities, and does not need
approval.

Some people
have confused the PSU with the Chinese Partner but they are two very different
concepts.

The PSU
is generally a government agency in the NGO's main field or area. For example,
if the NGO mainly works in the commercial or trade area, then it's PSU will
most likely be the Commerce Bureau. If the NGO mainly works on environmental
issues, then the PSU will most likely be the Environmental Protection Bureau.
The PSU also has supervisory authority over the NGO which is required to get
approval from the PSU for its operations and send annual work reports to the
PSU.The Ministry of
Public Security has just issued a catalogue of the government agencies that are
eligible to serve as PSUs for different fields/areas, so NGOs will need to consult
that catalogue for the eligible PSUs in their field. However, be aware that
just because the government agency is listed in the catalogue does not mean
that it is obligated to serve as a PSU.

In contrast to
the PSU, the Chinese Partner can come from a much larger pool of
organizations. Article 16 of the Overseas NGO Law states that the Chinese
Partner can be a government agency, a people's organization (e.g. Women's
Federation, Communist Youth League, etc.), public institution (e.g.
universities and research institutes), and social organizations (e.g. NGOs).
The Chinese Partner also has no supervisory authority over the NGO. The NGO
enjoys more of an equal relationship with the Chinese Partner. The Chinese
Partner, however, does play an important role in getting the necessary
approvals for "temporary activities" and filing the necessary
documents with the PSB.

Is there any
fine print in the law?

There is no
fine print in the law itself, but there are problems with the official English
translation, and there are also subtle omissions in the law that require a
close reading to understand what the law allows and does not allow.

First of all,
anyone working with the official
English translation of the law on the Ministry of Public Security website
(http://www.mps.gov.cn/n2254314/n2254409/n4904353/c5548987/content.html),
should be aware that there some mistakes in the translation.

One
particularly egregious mistake is in the second paragraph of Article
9 of the law. Here's the Chinese original:

"...Where an overseas NGO
has not registered an established representative office, nor submitted
documents for the record stating that it intends to carry out temporary
activities, it shall not carry out or covertly engage in any activities, nor
shall it entrust or finance, or covertly entrust or finance, any organization
or individual to carry out activities in the mainland of China on its behalf.
"

This
translation states that overseas NGOs shall not entrust or finance, or covertly
entrust or finance, any organization or individual to carry out activities in
mainland China. This suggests that overseas NGOs cannot contract services to,
or fund, another organization outside of China to carry out their activities
inside China.

Yet the Chinese
original is much more narrow. It states that overseas NGOs shall not entrust or
finance, or covertly entrust or finance, an organization or individual in mainland
China (those last three words were left out of the official translation) to
carry out activities within mainland China.

Another problem
with the translation occurs in Article 17 which discusses the procedures for
NGOs carrying out "temporary activities". The official
translation of the last part of that article reads:

"In
emergency situations, such as disaster relief and rescue operations, where an
overseas NGO needs to carry out temporary activities in the mainland of China,
the time frame for filing records mentioned in the preceding article shall not
apply; however, the duration of temporary
activities shall not exceed 1 (one) year. Where there is a need to extend this
deadline, documentation and information shall be re-submitted for the record."

This
translation makes it sound as if the one-year limit for temporary activities
applies only for disaster relief activities, but in fact the one-year limit is
meant to apply to all temporary activities. The official translation's mistake
is to place the phrase (in italics) starting with "however, the duration
of temporary activities...." right after the preceding sentence on
disaster relief activities, which suggests that this phrase only applies to
disaster relief. Yet in the Chinese original, the part about the duration not
exceeding one year is set off in a separate paragraph to show that it applies
to all “temporary activities”. Here is the correct translation:

"In
emergency situations, such as disaster relief and rescue operations, where an
overseas NGO needs to carry out temporary activities in the mainland of China,
the time frame for filing records mentioned in the preceding article shall not
apply."

The duration of temporary activities shall not
exceed 1 (one) year. Where there is a need to extend this deadline,
documentation and information shall be re-submitted for the record."

There are also
parts of the law where certain changes were made during the drafting process
that were not made clear. Two important examples come to mind:

1) Article 10
of the second draft of the law specifically stated that an overseas NGO could
register no more than one representative office. In the final version of the
law, that was removed, yet there was no language explicitly stating that more
than one representative office would be allowed. This question came up in one
of the MPS briefings in Shanghai and was clarified by the MPS spokeman. In
addition, language allowing more than one representative office was included in
the final version of the Guidelines.

2) Article 26
of the second draft of the law stated that overseas NGOs could not fundraise or
accept donations in China. In the final version of the law, the language
about accepting donations was removed (see Article 21), but here again no
language was inserted stating that overseas NGO could accept donations.

The lesson we
can learn from these two examples is that it pays to do a close comparison of
the final version of the law with earlier drafts because when changes were made
to the draft laws, the intent behind those changes was implied rather than made
explicit. The intent only becomes clear when comparisons are made with previous
drafts.